In re Ava H.
Filed 8/2/13 In re Ava H. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re AVA
H., a Minor.
FRANCISCO M.
et al.,
Petitioners and Respondents,
v.
PHILLIP M.,
Objector and Appellant.
D063284
(Super. Ct. No. A58238)
APPEAL from
a judgment of the Superior Court
of
County, Cynthia Bashant, Judge. Affirmed.
Christopher
R. Booth, under appointment by the Court of Appeal, for Objector and Appellant.
Stocks
& Colburn and Janis K. Stocks for Petitioners and Respondents.
Lelah S.
Fisher, under appointment by the Court of Appeal, for Minor.
Phillip M.
appeals the judgment declaring his daughter, Ava H., free from his custody and
control (Fam. Code, § 7822, subd. (a)(2))
upon the petition of Ava's maternal grandmother and stepgrandfather, Lisa M.
and Francisco M. (individually, grandmother and grandfather; together, the
grandparents). Phillip contends there is
not substantial evidence to support
the finding that he left Ava with the grandparents with the intent to abandon
her. We affirm.
BACKGROUND
In March
2007, Ava was born to Emily H. Phillip
was present at the birth, as were the grandparents, and Phillip's name is on
Ava's birth certificate. After being
released from the hospital, Emily and Ava went to live with the
grandparents. Phillip stayed with
friends and had sporadic contact with Ava.
In April or May, Phillip was arrested and incarcerated for a drug
offense. In July or August, he was
released and began living in an apartment with Emily and Ava. Emily and Ava spent every day at the
grandparents' home.
In December
2008, the grandparents suspected Phillip was using drugs or alcohol, and Emily
and Ava began spending more time at the grandparents' home. By April 2009, it was clear that Phillip was
using drugs or alcohol. In May, Emily
and Phillip ended their relationship, and Emily and Ava moved in with the
grandparents. Phillip had sporadic
contact with Ava.
In December
2009, Phillip appeared at the grandparents' home under the influence of drugs
or alcohol. They asked him to
leave. In March 2010, Phillip had one
visit with Ava
title="">[2]
and his whereabouts became unknown. On
July 16, the family court granted legal and physical custody of Ava to Emily
and ordered supervised visitation for Phillip upon proof of 60 days'
sobriety. Phillip received actual notice
of the family court case but decided not to appear after reading declarations
that said "horrible things" about him.
In August
2010, Phillip entered a drug rehabilitation program in Vista. He was released from the program in May
2011. The grandmother did not know
Phillip was in the program and had no communication with him during that time. Phillip testified that while he was in the
program, Emily brought Ava to see him twice, once in December 2010 and once in
March 2011.
title="">[3] While he was in the program, Phillip did not
seek a change in the visitation order because he believed he "needed to
graduate first and gain some stability first." Later, he "[j]ust wasn't prepared yet to
be there for [Ava]." In December
2010, Phillip's mother wrote to the grandparents that Phillip "calls me
every few weeks, is doing well."
In June
2011, Emily moved out of the grandparents' home and the grandparents had no
further contact with her. In July, Phillip
went to the grandparents' home and began monthly visits with Ava. According to the grandparents, this was
Phillip's first contact with Ava in at least 15 months. Phillip said he would like to see Ava from
time to time. Between July and October,
there were five visits.
name="_ftnref4" title="">[4] There were no visits in November or
December. In November, Phillip went to Alaska
to work for several months. He returned
to San Diego for a month, then
visited relatives and friends in other states.
While he was gone, the grandmother had no communication with him,
although Phillip might have called the grandfather once.
In March
2012, the grandparents filed a petition to declare Ava free from Emily's
custody and control. In April, when
Phillip returned to San Diego, the
grandparents met with him. In April or
May, Phillip had a visit with Ava. His
behavior led the grandparents to suspect he was using drugs, but Phillip
claimed he had not used drugs since completing the rehabilitation program. In April or May, Phillip failed to show up
for a visit. In June, he told the
grandparents he was going to Maine
for a month. He was gone four
months.
On June 26, 2012, the grandparents filed
their petition to declare Ava free from Phillip's custody and control, alleging
the following: Phillip left Ava in the
grandparents' care "since her birth, and off and on, for more than six (6)
months during her lifetime. . . . Since [Ava's] birth, [Phillip] has only had
token communication with the [grandparents], for a period of over six (6) months,
all with the intent on [Phillip's] part . . . to abandon
[Ava] for more than six months."
In August
2012, Phillip returned from out of state and contacted the grandparents. At the grandparents' invitation, Phillip had
dinner with them and Ava at the grandparents' home. In August or September,
Phillip hired an attorney in an effort to obtain unsupervised visitation. After that, Phillip was served with the
grandparents' petition. In September,
Phillip visited Ava once. In October,
the court found that Emily had failed to communicate with and support Ava for
at least one year.
At the
conclusion of trial in December 2012, the court stated that viewing the
"time line . . . even in kind of the best case
scenario for [Phillip] from the time Ava has been two he really has been
completely out of the picture." The
court cited three periods during which Phillip had no contact with Ava, or only
token communication: eight months
preceding Phillip's appearance at the grandparents' home in December 2009; 12
months preceding December 2010; and seven months between Halloween 2011 and May
2012. The court found that Phillip had
left Ava in the custody and control of others; he had had no contact with her
for at least one year; and his failure to communicate with Ava demonstrated he
had abandoned her. The court declared
Ava free from Phillip's and Emily's custody and control.
DISCUSSION
A child may
be declared free from parental custody
and control if "[t]he child has been left by both parents or the sole
parent in the care and custody of another person for a period of six months
without any provision for the child's support, or without communication from
the parent or parents, with the intent on the part of the parent or parents to
abandon the child."
name="_ftnref5" title="">[5] (§§ 7822, subd. (a)(2) & 7820.) The petitioner must establish these elements
by clear and convincing evidence. (§ 7821.) The purpose of section 7822 "is to
promote the child's best interest 'by providing the stability and security of
an adoptive home.' (§ 7800.) The statute is to 'be liberally construed to
serve and protect the interests and welfare of the child.' (§ 7801.)" (Adoption
of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010.) On appeal, "[w]e simply determine
whether there is substantial evidence, believed by the trial court, that
supports the court's findings. [Citation.]" (In re
Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 503 (
Phillip
first contends section 7822, subdivision (a)(2) is inapplicable here. He argues the grandparents should have
proceeded under section 7822, subdivision (a)(3), which applies when
"[o]ne parent [Phillip] has left the child in the care and custody of the
other parent [Emily] for a period of one
year . . . ."
Here, "both parents," Phillip and Emily, left Ava "in the
care and custody of [the grandparents]" within the meaning of section
7822, subdivision (a)(2). The
grandparents, not Emily, are the petitioners, and they correctly proceeded
under section 7822, subdivision (a)(2).
Phillip
next contends he did not leave Ava, as required by section 7822, subdivision
(a)(2), because the family court order deprived him of custody. Phillip is incorrect.
"[A]
parent 'leaves' a child by ' "voluntarily
surrender[ing]" ' the child
to another person's care and custody."
(In re Amy A. (2005) 132
Cal.App.4th 63, 69 (Amy A.).) "[A] parent will not be found to have
voluntarily left a child in the care and custody of another where the child is
effectively 'taken' from the parent by court order [citation]; however, the
parent's later voluntary inaction may constitute a leaving with intent to
abandon the child." (
at p. 504.) "[T]he
leaving-with-intent-to-abandon-the-child requirement of section 7822 can be
established by evidence of a parent's voluntary inaction after an order
granting primary care and custody to the other parent. [Citations.]
[¶] Simply stated, 'nonaction of
the parent after a judicial decree removing the child may convert a [judicial]
"taking" into a "leaving" [of a child by the parent].' [Citations.]" (Ibid.)
Here,
Phillip's "repeated inaction in the face of the custody order provides
substantial evidence he voluntarily surrendered his parental role and thus
'left' [Ava] within the meaning of section 7822." (Amy
A., supra, 132 Cal.App.4th at p. 70.)
In Amy A. the mother and
daughter moved out of the father's home at his suggestion. The father refused to have any contact with
his daughter for more than two years.
During that time, the mother obtained a divorce; the court granted her
sole legal and physical custody and granted the father visitation. (Id.
at p. 66.) The mother remarried, and the
court granted her husband's section 7822 petition. (Amy A.,
at pp. 65, 67.) This court rejected the
father's contention that the custody order precluded a finding he had left his
daughter, noting he had not appeared in the divorce proceedings or made any
attempt to seek modification of the custody order or exercise his visitation
rights. (Id. at p. 70.)
Phillip
relies on In re Jacklyn F. (2003) 114
Cal.App.4th 747 (Jacklyn F.), which
is distinguishable from the instant case.
There, the grandparents filed a guardianship petition three days after
the mother left the child in their care.
The mother filed opposition, sought the child's return and appeared at a
hearing slightly more than a month after the petition was filed. The reviewing court concluded, "[o]nce
the guardianship was granted, . . . the minor's custody
status became a matter of judicial decree, not abandonment." Thus, the mother's "conduct following
the granting of the guardianship—which included sending 'stacks' of letters to
the minor but failing to visit her—did not constitute 'parental nonaction'
amounting to a leaving." The court
did "not discount the possibility that, under different circumstances, it
might be proper to conclude that a parent has 'left' a child within the meaning
of section 7822 despite court intervention. . . ." (Id.
at p. 756.) Such circumstances are
present in Phillip's case. Unlike the
mother in Jacklyn F., he made little
if any effort to communicate with Ava for at least a year after the family
court made its custody order. (
Finally,
Phillip contends the grandparents failed to prove he intentionally abandoned
Ava. He relies largely on his own
testimony concerning his contact with Ava and his unsuccessful attempts at
further contact. The grandmother refuted
Phillip's testimony and the court impliedly found it not credible. " 'The questions of abandonment and of
intent . . . are questions of fact for the resolution of
the trial court.' [Citation.]" (Jill
& Victor D., supra, 185 Cal.App.4th at p. 506.) "[W]e do not pass on the credibility of
witnesses, resolve conflicts in the evidence, or determine the weight of the
evidence. [Citation.]" (Id.
at p. 503.)
" 'The
controlling issue for a finding of abandonment is the subjective intention of
the parent[,]' " but " '[i]ntent to
abandon . . . may be found on the basis of an objective
measurement of conduct, as opposed to stated desire.' " (In re
Brittany H. (1988) 198 Cal.App.3d 533, 550.) "In determining a parent's intent to
abandon, the trial court may consider not only the number and frequency of his
or her efforts to communicate with the child, but the genuineness of the effort
under all the circumstances [citation], as well as the quality of the
communication that occurs [citation]."
(In re B.J.B. (1986) 185
Cal.App.3d 1201, 1212.)
"The . . . failure to communicate is
presumptive evidence of the intent to abandon.
If the parent or parents have made only token efforts
to . . . communicate with the child, the court may declare
the child abandoned by the parent or parents." (§ 7822, subd. (b).) "The parent need not intend to abandon
the child permanently; rather, it is sufficient that the parent had the intent
to abandon the child during the statutory period." (Amy
A., supra, 132 Cal.App.4th at p. 68, citing In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) Under these criteria, substantial evidence
supports the court's findings that Phillip left Ava in the grandparents' care
and custody for six months, without communication, with the intent to abandon
her.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] Further
statutory references are to the Family Code.
name="_ftn2" title="">[2]
Phillip also attended a couple of
Ava's T-ball or soccer games when she was three to five years old.
